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Wills & Estates

The importance of estate planning

When we talk about estate planning, what we really mean is working with you to document your wishes about how your assets are managed if you lose capacity or need assistance, how decisions concerning your future health needs will be made, and how your assets should be distributed after you die.

Preparing a Will

The preparation of a carefully planned and well drafted Will forms a central part of estate planning. If you do not have a Will, your assets will be divided according to the rules of intestacy relevant in each State or Territory. This could result in your hard-earned assets not being distributed to those you intended to benefit.

Considerations when planning a Will include:

  • Who you should appoint as your executor/s – your legal personal representative/s after you die.
  • Your beneficiaries – who should receive your assets after you die and how those assets should be divided.
  • If you have young children, who would be a suitable guardian to appoint if you were to die before the children were old enough to look after themselves.
  • Whether you need to appoint a trustee to manage assets left to minor children until they become adults.
  • If you have children from a previous relationship, what provision will be made for those children.
  • If you have a de facto or same sex partner, what provision will be made for that person.
  • Whether there are specific individuals you may wish to exclude as beneficiaries and whether their exclusion could lead to a dispute over the estate.
  • Documenting your wishes regarding funeral arrangements to provide guidance to your executors.

Choosing an Executor

Your executor will be your personal legal representative when you die and should be chosen with care.

An executor’s responsibilities include arranging your funeral, collecting debts owed, claiming under any insurance policies, protecting your assets until distribution, obtaining probate, ensuring assets are distributed according to the Will and filing estate returns.

If the Will is disputed or a family provision claim is made, your executor will be responsible for dealing with the dispute and giving instructions to legal representatives.

The person you appoint should be willing to accept the role of executor and, although usually guided by a lawyer, have the confidence, capacity, and experience to fulfil the position. Appointing more than one executor may be recommended, and appointing an alternate executor will enable that person to take on the role if the first-named executor is unable or unwilling to act. Consider also, the age of the person chosen, and whether it is likely you will outlive him or her.

For simple estates, a spouse or child / children (or combination) are often chosen, however this choice must take into consideration your personal circumstances. If there is conflict within the family unit, an impartial executor may be more appropriate. For complex estates, with business interests or which will have ongoing trusts, it may be preferable to appoint a professional with expertise in this area.

Powers of Attorney – getting help to manage your affairs

For various reasons, we may need help managing our affairs when it becomes impractical or impossible to do so ourselves.

A Power of Attorney enables someone to handle your legal and financial matters on your behalf and can be used if you are planning to go overseas, suffer from poor health, have an accident or reach a stage in life when you just need more help with these things.

The appointment of an ‘attorney’ enables that person to act in your place and do the things you would normally do yourself, such as signing documents, paying bills and doing the banking. Your attorney can enter into agreements in your name and on your behalf, so must be somebody you trust implicitly.

A general power of attorney can last for as long as specified in the document (such as while the ‘donor’ is travelling overseas) or as long as he or she has mental capacity.

A general power of attorney no longer operates if the donor loses capacity to make decisions. Accordingly, it may be more appropriate to prepare an Enduring Power of Attorney while you have capacity to do so. In such cases the authority given to your attorney continues, or endures, if you lose mental capacity.

Superannuation

At the same time as you check the health of your Will, you need to check your superannuation and life insurance, which generally forms part of your super policy.

Many people assume their superannuation will be divided in accordance with the wishes in their Will, but that is not necessarily the case. You need to review your superannuation policy to check how you have nominated your funds to be allocated when you die and that this distribution is in accordance with your wishes.

Estate planning helps to minimise risk that the assets you have spent a lifetime accumulating are left to those you wish and not depleted through costly legal battles after you die. Such disputes can arise simply because no direction has been given as to how you wish your estate to be divided.

We have expertise in this important area of law and can assist in bringing peace of mind to you and your family by ensuring you have an effective estate plan in place to deal with the unforeseen and the inevitable.

If you need any assistance contact [email protected] or call 0401 234 710 for a no-obligation discussion and for expert legal advice.